Plaintiffs v Defendants

For the other defendants/ plaintiffs by counterclaim

**1 I refuse the application made by Sheila Laxon for an adjournment of the trial of this proceeding and I order that the remaining claims in the counterclaim proceeding (by paragraphs 45A - 45H of the second further amended counterclaim dated 10 April 2013) brought on behalf of the 2nd and 3rd plaintiffs by counterclaim (Mr Symons and Ms Laxon) stand dismissed.

2 This proceeding was commenced by writ filed on 7 July 2011. On 26 March 2013, Judd J ordered that the defamation and injurious falsehood claims that are pleaded in paragraphs 45A to 45H of the counterclaim by Mr Symons and Ms Laxon against the plaintiffs be severed and determined separately from the trial of the other issues raised in the proceeding.

3 Those other pleaded issues were determined by Digby J following a trial in April and May 2013. Judgment was delivered on 10 October 2014. The plaintiffs were successful in those claims. In April 2015, Ms Laxon sought a stay of execution of the October 2014 judgment to permit a potential set off against the extant judgment if the defamation and injurious falsehood counterclaims were successful. That application was refused.

4 At about that time the defendants to the counterclaim (the Butlers) suggested they might seek orders for security for costs against the plaintiffs by counterclaim, based on a suggestion that Ms Laxon may obtain litigation funding to pursue the extant claims, but to date no such funding appears to have been obtained. The Butlers reserved their right to bring such an application should it become appropriate as a result of litigation funding being obtained.

5 The trial of the extant claims in the proceeding was allocated to T Forrest J who during 2015 scheduled two directions hearings that did not proceed because Ms Laxon was not available. At the directions hearing convened on 25 August 2015 Ms Laxon was advised by the judge to obtain legal representation. The application for security for costs was adjourned over to 12 October 2015 but, as I have noted, did not proceed.

6 At that directions hearing, T Forrest J directed that the extant claims proceed in the traditional common law style, that is, without witness statements and a court book. There were some issues in respect of the pleadings which the Butlers told the court could be resolved by further and better particulars. However, the request for further and better particulars was not made.

7 T Forrest J set the proceeding down for final directions on 25 January 2016 and for trial on 27 January 2016. However due to other commitments, T Forrest J could not hear the trial on those dates and the trial was allocated to me. The first available date on which I could hear it was 2 February 2016, some six days after the date originally fixed for trial.

8 The parties were notified of these changed arrangements on 12 January 2016 by an email from the chambers of the Principal Judge of the Common Law Division. The solicitor for the Butlers, Mr Kuperholz, acknowledged receipt and stated that Ms Laxon to his knowledge was self-represented.

9 On 18 January 2016, Ms Laxon emailed the court, but not Mr Kuperholz, noting the change of the scheduled trial date and stating that she had set aside the week commencing 25 January 2016 for this proceeding. I interpolate to say that by this email Ms Laxon suggested that she had set aside that week in order to conduct and complete the trial of that proceeding. Her email continued, 'Unfortunately I have to attend the New Zealand Yearling sales for my employer, JSL Racing (Australasia) Pty Ltd, who have booked the airfare on 29 January and have obtained permission for me to go overseas from my bankruptcy trustee'. She also noted an opportunity to be represented by Mr Nash QC and that he was not available until the end of March. For present purposes, I regard this email as raising two grounds for an adjournment.

10 The following day, 19 January 2016, my chambers emailed the parties stating:**

Any application for an adjournment of the trial of this proceeding must be cc'ed to the other parties to give them an opportunity to respond. Please indicate what specific dates prior to Easter are suitable for Mr Nash. Please direct any further correspondence concerning this proceeding to this email address.

**11 On 22 January 2016, Ms Laxon replied. She stated that Mr Nash QC was not available before 30 March 2016 and, also, could not appear on her behalf unless instructed by a solicitor. She stated that she was in the course of arranging for a solicitor to instruct Mr Nash but that those arrangements were not yet finalised. On 25 January 2016 Mr Kuperholz emailed the Court and Ms Laxon setting out the defendants' objections to any application for an adjournment. In that email, Mr Kuperholz reported having made inquiries about the New Zealand yearling sales, inquiries to which I will return.

12 On 25 January 2016, my chambers emailed the parties stating:**

The trial will proceed as previously stated on 2 February unless it is adjourned by an order of the court.

His Honour will entertain any adjournment application on 2 February 2016, but if that cannot accommodate Ms Laxon's position, she will need to make an earlier application to the Practice Court. Any application will need to be supported by evidence (affidavit).

**13 In an email dated 28 January 2016 to my chambers and Mr Kuperholz, Ms Laxon stated that she had 'just received' the email from my chambers dated 25 January 2016 and stated that the date of 2 February 2016 was 'absolutely impossible for either my QC or myself to attend.' Ms Laxon was at this stage in New Zealand.

14 Mr Johnson, who appeared today for Ms Laxon informed me that he was only instructed by Ms Laxon to appear to seek an adjournment. Mr Johnson had not filed a notice of change of solicitor and did not intend to do so. Further, he was not instructed by Mr John Symons who is also a plaintiff by counterclaim in respect of the extant claims. Mr Symons did not appear. Mr Johnson also stated that it was unlikely that he would be the solicitor instructed to appear at a trial of the proceeding because he had recommended to Ms Laxon that she retain a solicitor who was experienced not simply in litigation, but in defamation litigation. In the circumstances, I granted Mr Johnson leave to appear for that limited purpose, essentially as an amicus.

15 Mr Kuperholz deposed to enquiries that he made of Ms Laxon's bankruptcy trustee, Stirling Horne. Mr Kuperholz was informed by an assistant to Mr Horne that Ms Laxon initially sought his permission to fly to Auckland on 29 January 2016, returning to Melbourne on 15 February 2016. Mr Symons sought a permission to fly to Auckland on 24 January 2016 also returning on 15 February 2016.

16 On 8 January 2016, Ms Laxon supplied to Mr Horne particulars of the flights, accommodation and contact phone numbers for both herself and Mr Symons. Following on the correspondence between my chambers and Ms Laxon to which I have earlier referred, on 20 January 2016, Ms Laxon stated to her bankruptcy trustee, 'Something has come up and I would like to change my flight from Melbourne to Auckland to this Sunday, 24 January'.

17 I am satisfied that Ms Laxon left Australia on 24 January 2016 without having made any formal application for the adjournment of the trial after being informed that it would be necessary to do so on the basis of proper material. That application could have been made in the Practice Court, or, if motivated by considerable optimism, before the court on the first day of the trial. I am satisfied that Mr Johnson was instructed by telephone from New Zealand to make the application today and he was required to do so without the benefit of any proper explanation provided by Ms Laxon by an affidavit.

18 Mr Kuperholz established that the New Zealand horse sales commenced with the 2016 premier yearling sale that took place on 25 and 26 January 2016, followed by the 2016 select yearling sale on 27, 28 and 29 January and finally the 2016 festival yearling sale on 31 January 2016.

19 Because the matters deposed to by Mr Kuperholz were not answered either by affidavit or any submission by Mr Johnson from the bar table, I do not accept the explanation given by Ms Laxon in her email communications with the court for her inability to attend court for the trial of the proceeding. Ms Laxon had an adequate opportunity (8 days) to file an affidavit in answer to that filed by Mr Kuperholz because his affidavit in substance reflects his earlier email transmitted to Ms Laxon on 25 January 2016. Further, the communications from my chambers on 25 January 2016 with Ms Laxon expressly refer to the need for an application to be based on an affidavit. Ms Laxon was also advised by Mr Nash QC of that requirement in an email from him that she forwarded to the court on 28 January 2016.

20 The difficulty in accepting Ms Laxon's explanation is that the yearling sales which provide the reason for her attendance in New Zealand do not conflict with the present arrangements for the trial of this proceeding to commence today. Those sales would have completed last week. Rather her explanation demonstrates that the date originally fixed, 27 - 29 January 2016, directly conflicted with the horse sales. Ms Laxon would not have been in a position to appear at the trial date fixed by T Forrest J had she attended attend the horse sales, but she was not precluded from attending court today by those sales. Mr Symons plainly had no intention of attending to trial. Mr Kuperholz also pointed out that Ms Laxon's employer is a company that is effectively owned and controlled by Ms Laxon and Mr Symons. I reject the suggestion that she was required to attend the horse sales by her employer. Further, Mr Johnson stated that Ms Laxon was now in New Zealand catching up with her family on a pre-planned trip.

21 Accordingly, I was unable to identify a satisfactory reason to adjourn the trial of the proceeding on the basis of Ms Laxon's commitment to attend the New Zealand horse sales. I am satisfied that Ms Laxon's absence from court today is because she has preferred a holiday in New Zealand catching up with family to prosecuting her remaining claims before the court.

22 Further there are other matters that are relevant. Ms Laxon and her partner, Mr Symons are both undischarged bankrupts. Ms Laxon, through Mr Johnson, did not make any offer to compensate the defendants for the costs thrown away in preparation for the trial of this proceeding. It is plain that an order for the costs thrown away would be worthless to the Butlers and would provide no compensation to them that would alleviate the prejudice of having to prepare for the trial of this proceeding commencing today. I accept that the Butlers have been put to considerable expense and inconvenience in preparing for trial and only received very short notice of Ms Laxon's proposed application. I note that Mr Kuperholz promptly stated the Butlers opposition to an adjournment and their intention to press to resolve this long outstanding claim. The Butlers have incurred, not unreasonably, the full expense of preparation for a trial.

23 In addition, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Further, it is well established that an application for an adjournment is not to be considered solely by reference to whether any prejudice can be compensated for by a costs order, and case management considerations are relevant.[1] I will return to the issue of court resources.

24 There was significant delay in prosecuting the extant claims while the other issues raised between the parties were resolved by the judgment of the court in October 2014. I do not take into account the period of time prior to the delivery of that judgment. However, there is no satisfactory explanation of the time that has been taken to have this trial ready to be determined today. Rather it appears that Ms Laxon has been dilatory in cooperating with the court through the scheduling of directions hearings that may have resulted in an earlier and more expeditious trial of the proceeding. Ms Laxon was not in a position to proceed with the trial on 27 January 2016. It appears that at least some time prior to that date she decided to attend the horse sales in New Zealand and took no steps to resolve the conflict between a 27 January 2016 trial date and the horse sales.

25 The significance of the delay that would be occasioned by an adjournment of the proceeding is that relevant and critical evidence at trial would be of conversations between the Baxters and other persons in the middle of 2011. That is approximately four and a half years ago. That delay is particularly pertinent in this case because what is alleged is a slander, to return to the language of the law prior to the Defamation Act, 2005.

26 The modern approach to defamation litigation requires that it is determined expeditiously, which is evident from the strict limitation period of one year that applies. That fact alone emphasises the significance of general delay. More significantly, there is a real prejudice for the Butlers because the court is entitled to infer that the quality of the evidence about the precise content of the defamatory publications drawn from conversations between the plaintiffs and other persons some four and a half years earlier will have degraded with the passage of time. This difficulty is exacerbated because the plaintiffs by counterclaim have not properly pleaded their claim, in that they have not alleged the precise words that constituted the defamatory publication in respect of most of the alleged imputations.

27 It is well established that a plaintiff pleading a defamation by a communication published orally must allege the exact words used. To the extent that the plaintiff cannot do so, in appropriate circumstances the court may assist the plaintiff by permitting carefully directed interrogatories to establish what the defendant states was communicated.

28 Further, one of the Butlers' defences is contextual truth, and I am unable to see how such a defence could be fairly be resolved by the court on the current state of the pleadings and with the prospective evidence tainted by significant delay.

29 In balancing the considerations that are relevant on the exercise of this discretion, it is also significant that despite having had a reasonable opportunity Ms Laxon has not sought to explain her position to the court by affidavit. As the High Court has made plain in Aon Risk Services:[2]**

Generally speaking where a discretion is sought to be exercised in favour of one party and to the disadvantage of another an explanation will be called for. The importance attached by Rule 21 to the factor of delay will require that in most cases where it is present a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention so that they may be weighed against the effects of any delay and the object of the rules.

**30 What the High Court said in relation to an application for a pleading amendment applies equally to an application for an adjournment. I am neither satisfied that this application has been brought in good faith, nor am I satisfied that the applicant has produced proper and appropriate evidence that enables me to exercise judicially the discretion, that Ms Laxon invites, to adjourn the proceeding.

31 The exercise of the court's power to adjourn a trial of a proceeding is exercised by reference to ss 7 - 9 of the Civil Procedure Act, 2010. The court is required to give effect to the overarching purpose in relation to civil proceedings, which is to facilitate the just, efficient, timely and cost effective resolution to the real issues in dispute.

32 The primary objective of the overarching purpose is the just determination of the civil proceeding, and it can be said that permitting the plaintiff to delay the trial in order to have the opportunity to properly present her case, by being present and represented by Mr Nash QC, involves ensuring the just determination of the civil proceeding for the plaintiff. However, although in the past appellate courts have more readily accepted that an adjournment should be granted if its refusal would prevent a party from making out her case, that proposition is now qualified by the importance that is accorded to case management principles both by the decision of the High Court in Aon Risk Services and by the provisions of the Civil Procedure Act. In that respect, I refer to the observations of the Court of Appeal in Eaton v ISS Catering Services.[3]

33 Another matter that is relevant to the exercise of discretion is the efficient use of judicial and administrative resources and the efficient conduct of the business of the court, which are objectives identified in s 9 of the Civil Procedure Act. In this case the efficient conduct of the business of the court required the reallocation of the trial of this proceeding from T Forrest J to myself and resulted in the listing of this matter for trial commencing today. It is important that the court is able to properly allocate its scarce resources the benefit of all litigants who come before it.

34 Second, the application for the adjournment was also based on the desirability of Mr Nash QC appearing for Ms Laxon at the trial and to provide an opportunity for that to occur. First, based on his email forwarded to the Court by Ms Laxon on 28 January 2016 and Mr Johnson's statements, it was not at all clear that Mr Nash QC would appear in the trial of this proceeding. All that is clear is that if Mr Nash QC was provided with an instructing solicitor, he would be available to appear for Ms Laxon after 30 March 2016.

35 Fundamentally what Ms Laxon is inviting the court to do is to throw away the court resources that have been made available to deal with the proceeding this week in order to suit her convenience in obtaining the services of Mr Nash QC. In my view that convenience does not result in the efficient conduct of the business of the court, cannot be said to be the efficient use of judicial and administrative resources and is a factor that further militates against granting an adjournment. As was also noted by the Court of Appeal in Karam v Palmone Shoes Pty Ltd,[4] it is relevant to bear in mind the effect of any adjournment on court resources and the competing claims by litigants in other cases awaiting hearing before the court.

36 In a practical sense, to adjourn the trial of this proceeding to after 30 March 2016 would send the proceeding to another judge because of the allocations of judicial resources for the completion of the court's business that have been made for the 2016 year.

37 I would also add that, given the cameo appearance of Mr Johnson for Ms Laxon, she might be regarded as being self-represented. I am satisfied that Ms Laxon, having completed a complex piece of litigation before Digby J, is sufficiently informed about court processes to understand that she cannot continue to subject the other parties to these claims, to cost and inconvenience, and to add pointlessly to the load on the court's already limited resources. What appears to me to be absent is Ms Laxon's acceptance of responsibility for the conduct of her claim and of the need to press her claim to a timely determination.

38 For these reasons, the application that Mr Johnson advances on behalf of Ms Laxon for an adjournment of the trial of the proceeding is refused.

39 Rule 49.02 of the Supreme Court (General Civil Procedure) Rules 2015 provides as follows:**

49.02 Absence of party

(1) If, when the trial of a proceeding is called on, any party is absent, the Court may -

(a) order that the trial be not had unless the proceeding is again set down for trial, or unless such other steps are taken as the Court directs;

(b) proceed with the trial generally or so far as concerns any claim for relief in the proceeding; or

(c) adjourn the trial.

**40 As a result of the refusal of the application for an adjournment and the absence of Ms Laxon, the plaintiffs by counterclaim have failed to appear to prosecute the outstanding claims in this proceeding. Mr Johnson confirmed that his instructions were only to apply for an adjournment and he does not appear to prosecute the claims in the event that the adjournment is refused. Where the plaintiffs by counterclaim are absent the court is entitled to proceed with the trial.

41 Because the plaintiffs by counterclaim bring the only claim to be advanced in this proceeding and are not present, the defendants to the counterclaim are entitled to judgment dismissing those counterclaims,[5] and as I announced at the outset of these reasons, they will be dismissed with costs. There are further questions arising about the precise order for costs to be made and I will defer making any formal order in respect of costs to 7 March 2016.**

[1] AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in particular [4] - [6], [24], [30] per French CJ, [94] - [98], [111] - 114] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

[2] Ibid, [104] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[3] [2013] VSCA 361.

[4] [2012] VSCA 97.

[5] Armour v Bate [1891] 2 QB 233.